Clarion Housing Association Limited v Crest Nicholson Operations Limited
[2023] EWHC 620 (TCC)
Safeera Akram v Academy Doors and Windows Ltd
30 June 2023
[2023] EWHC 1653 (KB)
High Court
A homeowner sued builders for shoddy work. A judge ruled in the homeowner's favor. The builders tried to appeal, but a higher court said the original judge made a fair decision and refused to overturn it.
Key Facts
- •Contractual dispute over construction works at a residential property.
- •Claimant (homeowner) contracted with two defendants (Academy Doors & Windows Ltd and its owner): one for building works, one for windows.
- •Defendants contended Claimant contracted with D1 for all works.
- •Disputes over contracting parties, VAT payable, causation of defects, and amount of damages.
- •Judge Hellman QC awarded damages to the Claimant and dismissed the counterclaim.
- •Defendants' renewed application for permission to appeal was refused by Mr Justice Constable.
Legal Principles
Permission to appeal granted only if a real prospect of success or other compelling reason.
CPR 52.6(1)
When challenging a trial judge's findings of fact, the appeal court must be satisfied the findings were unsupported by evidence or no reasonable judge could have reached them.
The Mayor and Burgesses of the Haringey LBC v Ahmed & Ahmed [2017] EWCA Civ 1861
Appellate courts generally defer to trial judges' findings on witness credibility.
Cook v. Thomas [2010] EWCA Civ 227, Re: B [2013] 1 WLR 1911
In determining contracting parties, the relevant test is what a reasonable person, furnished with relevant information, would conclude; private thoughts of protagonists are irrelevant.
Lumley v Foster & Co Group Ltd and Others [2022] EWHC 54(TCC), Hamid v Francis Bradshaw Partnership [2013] EWCA Civ 470
In costs assessment on an indemnity basis, proportionality to the matters in issue is disregarded; doubts about reasonableness of costs are resolved in favor of the receiving party.
CPR Rule 44.3
Outcomes
Permission to appeal refused.
No real prospect of success on the grounds of appeal. The Judge's findings were supported by evidence and were ones a reasonable judge could reach. The appeal focused on re-arguing points already considered by the trial judge.
Judge Hellman QC's finding that D2 was the contracting party for building works upheld.
The judge considered various factors, including the Claimant's dealings with D2, lack of evidence from D2 about acting for D1, inconsistencies in D2's evidence, and other circumstantial evidence, despite the VAT issue.
Judge Hellman QC's finding on the inclusion of materials in the contract price upheld.
This was a finding of fact supported by the evidence, and the differences in subsequent contractors' prices are not probative due to different circumstances.
Judge Hellman QC's conclusion that D2 was responsible for defective works upheld.
The judge preferred the Claimant's evidence and considered D2's evidence evasive. The Judge's assessment of evidence was not open to challenge.
Dismissal of the counterclaim upheld.
Consistent with other findings of fact.
Costs order upheld.
The trial judge was best placed to assess costs, given the indemnity basis and other factors in Rule 44.3(5).